Summerhill, LLC v. Meriden ( 2016 )

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SUMMERHILL, LLC v. CITY OF MERIDEN ET AL.
(AC 37667)
Alvord, Keller and Flynn, Js.
Argued November 19, 2015—officially released January 19, 2016
(Appeal from Superior Court, judicial district of
Hartford, Complex Litigation Docket, Sheridan, J.)
Dominic J. Aprile, for the appellant (plaintiff).
Jody N. Cappello, with whom was Sara J. Ray, for
the appellees (defendants).
Opinion
ALVORD, J. The plaintiff, Summerhill, LLC, appeals
from the judgment of the trial court granting the motion
for a directed verdict in favor of the defendant Lawrence
J. Kendzior.1 The plaintiff argues that the trial court
erred by granting a directed verdict in favor of the
defendant as to the claims of breach of contract and
breach of the covenant of good faith and fair dealing
because the court ‘‘fail[ed] to give due weight to the
evidence of the agreement between plaintiff and defen-
dant.’’ We affirm the judgment of the trial court.2
The following facts and procedural history are rele-
vant to this appeal. The plaintiff owned 12.44 acres of
land at 39 Sams Road in Meriden. The plaintiff was
restricted from developing the property because the
city had designated it as part of its ridgeline protection
zone.3 The plaintiff, through its managing member and
other associated companies, has been in litigation with
the city over this piece of property since at least 1994.
Carabetta v. Planning Commission, Superior Court,
judicial district of New Haven, Docket No. CV-03-
0285713 (December 8, 2005).
On June 5, 2007, the plaintiff’s prior counsel, Gene-
vieve Salvatore, initiated a meeting with the defendant,
who was employed as city manager. Both sides agree
that Salvatore discussed hiring a geologist to try to
prove to the city that the plaintiff’s property should not
be included within the ridgeline protection zone. The
parties disagree as to whether this meeting resulted in
a contract. The plaintiff claims that the meeting resulted
in two oral contracts: one with the city and another
with the defendant individually. The defendant claims
that he did not agree to a contract in either his profes-
sional or individual capacity.
On October 29, 2010, the plaintiff filed the present
complaint. The original complaint included eight
counts, but the plaintiff was allowed to proceed to trial
on only two counts, the claims of breach of contract and
breach of the covenant of good faith and fair dealing.4 A
jury was seated and witness testimony was presented
over the course of three days. After the defendant and
the city rested their case, they renewed their motion
for a directed verdict: as to the defendant individually,
based on a lack of evidence of an agreement, and as
to the city, under the Fennell doctrine.5 See Fennell v.
Hartford, 238 Conn. 809, 814, 681 A.2d 934 (1996) (‘‘[A]ll
who contract with a municipal corporation are charged
with notice of the extent of . . . the powers of munici-
pal officers and agents with whom they contract, and
hence it follows that if the . . . agent had in fact no
power to bind the municipality, there is no liability on
the express contract’’).
After entertaining the arguments of counsel and
reviewing the city’s charter, the trial court, Sheridan,
J., concluded that Fennell was controlling as to the
claims against the city; if a contract had been formed
it could not be enforced against the city because its
agents were not authorized to enter into such an
agreement. The court granted the motion for directed
verdict as to the claims against the city and its agents
for breach of contract and breach of the covenant of
good faith and fair dealing. The court also granted a
directed verdict in favor of the defendant, individually,
for the claims of breach of contract and breach of the
covenant of good faith and fair dealing. The court con-
cluded that there was ‘‘insufficient evidence to submit
the case to the jury as to whether an agreement existed
individually with [the defendant].’’ This appeal
followed.
With respect to the grant of a motion for directed
verdict as to the defendant individually, the plaintiff
claims that the court ‘‘fail[ed] to give due weight to the
evidence of the agreement between plaintiff and [the
defendant] . . . .’’ We disagree. The court did not
abuse its discretion in concluding that there was insuffi-
cient evidence to prove the existence of a contract.
The standard of review for the grant of a motion for
a directed verdict is the abuse of discretion standard.
Tomick v. United Parcel Service, Inc., 135 Conn. App.
589, 603, 43 A.3d 722, cert. denied, 305 Conn. 920, 47
A.3d 389 (2012). ‘‘Generally, litigants have a constitu-
tional right to have factual issues resolved by the jury.
. . . Directed verdicts [therefore] are historically not
favored and can be upheld on appeal only when the
jury could not have reasonably and legally reached any
other conclusion. . . . We review a trial court’s deci-
sion to direct a verdict for the defendant by considering
all of the evidence, including reasonable inferences, in
the light most favorable to the plaintiff. . . . A verdict
may be directed where the decisive question is one
of law or where the claim is that there is insufficient
evidence to sustain a favorable verdict.’’ (Internal quota-
tion marks omitted.) Beckenstein Enterprises-Prestige
Park, LLC v. Keller, 115 Conn. App. 680, 693, 974 A.2d
764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009).
‘‘The elements of a breach of contract action are the
formation of an agreement, performance by one party,
breach of the agreement by the other party and dam-
ages.’’ (Internal quotation marks omitted.) Ibar v. Stra-
tek Plastic Ltd., 145 Conn. App. 401, 410, 76 A.3d 202,
cert. denied, 310 Conn. 938, 79 A.3d 891 (2013). ‘‘The
existence of a contract is a question of fact to be deter-
mined by the trier on the basis of all of the evidence.
. . . In order for an enforceable contract to exist, the
court must find that the parties’ minds had truly met.
. . . If there has been a misunderstanding between the
parties, or a misapprehension by one or both so that
their minds have never met, no contract has been
entered into by them and the court will not make for
them a contract which they themselves did not make.’’
(Internal quotation marks omitted.) Sullivan v. Thorn-
dike, 137 Conn. App. 223, 229, 48 A.3d 130 (2012).
There is insufficient evidence to infer that a contract
was formed between the plaintiff and the defendant in
his individual capacity. During trial, the plaintiff relied
almost entirely on an undated letter that Salvatore sent
to the defendant following the June 5, 2007 meeting.
Specifically, Salvatore stated in the letter: ‘‘If you recall,
you agreed that if it can be shown that the site of the
Community Village Project (the ‘Project’) is not in fact
a ridgetop, you would be in a position to recommend
to the planning commission/city council to have the
Project site removed from the ridgetop protection area
imposed by the City of Meriden.’’ (Emphasis in original.)
The defendant did not respond to the letter. Even
viewed in the light most favorable to the plaintiff, this
letter did not prove a meeting of the minds on contrac-
tual terms to which the defendant intended to be bound.
The letter reflected the position of the party that was
proposing a contractual relationship and it was lacking
the essential elements of an agreement.
The letter did not set forth any consideration to sup-
port the formation of a contract. ‘‘It almost goes without
saying that consideration is [t]hat which is bargained
for by the promisor and given in exchange for the prom-
ise by the promisee . . . . We also note that [t]he doc-
trine of consideration does not require or imply an
equal exchange between the contracting parties. . . .
Consideration consists of a benefit to the party promis-
ing, or a loss or detriment to the party to whom the
promise is made.’’ (Internal quotation marks omitted.)
Harley v. Indian Spring Land Co., 123 Conn. App. 800,
818–19, 3 A.3d 992 (2010). The trial court specifically
asked the plaintiff’s counsel to identify the consider-
ation supporting the alleged contract between the plain-
tiff and the defendant, but counsel could not provide
an answer. Now on appeal, the plaintiff claims that as
consideration, the plaintiff had agreed not to sue the
defendant individually for his actions in regard to the
plaintiff’s property. However, the plaintiff cannot spec-
ify what litigation it was threatening against the defen-
dant as an individual. When pressed by this court on
this key point, the plaintiff’s counsel was unable to
identify litigation pending on June 5, 2007. Moreover,
the plaintiff has not provided any direct evidence that
any alleged consideration was actually offered or
accepted. The defendant testified that during his meet-
ing with Salvatore on June 5, 2007: ‘‘We didn’t discuss
ending any litigations or not bringing new lawsuits. She
alluded to the fact that there was a pending lawsuit,
but she didn’t make any kind of settlement offer or
something. And if she had, again, that’s something that
has to go to the corporation counsel and has to be
approved by the city council. So, I mean, she was again
misstating what actually happened in that meeting.’’
The defendant repudiated the plaintiff’s position that
there was an agreement.6 He testified that the letter
bore no resemblance to the conversation that had
occurred. ‘‘We didn’t have that agreement. She wanted
to hire a geologist. She wanted to, I guess, present that
at some point in time. All that I said to her was that if
we received—and by ‘we,’ I mean myself and staff—if
we received a report from a geologist and it seemed to
be reasonable and it had some level of expertise, we
would certainly tell the city council. If she filed an
application to change the zone, we would certainly tell
the city council that, you know, there was such a report
and that we had received it.’’ The only other party pre-
sent for the alleged negotiations was Salvatore. She
testified at trial, but was unable to offer any additional
evidence as to the existence of a contract between the
plaintiff and the defendant: ‘‘I don’t remember—I don’t
have a recollection of meeting with [the defendant].
The documents indicate that I did, so I don’t have a
reason to suggest that I didn’t. But I don’t recall the
meeting itself or what we talked about.’’
The trial court considered the limited evidence pre-
sented to prove the existence of a contract between
the plaintiff and the defendant and found it insufficient
to submit to the jury. The plaintiff was unable to show
consideration to support the agreement. The plaintiff
was also unable to refute the defendant’s testimony
that a contract had not been formed or to show that it
intended to contract with the defendant individually.
‘‘A directed verdict is justified if . . . the evidence is
so weak that it would be proper for the court to set
aside a verdict rendered for the other party.’’ (Internal
quotation marks omitted.) Perez-Dickson v. Bridgeport,
304 Conn. 483, 512–13, 43 A.3d 69 (2012). The court did
not abuse its discretion in granting a directed verdict
in favor of the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff has not appealed from the trial court’s granting of the motion
for directed verdict in favor of the other defendants, the city of Meriden
(city) and Dominick Caruso, the city’s director of planning and development.
Our references in this opinion to the defendant are to Kendzior. The plaintiff
had also alleged breach of contract and breach of the covenant of good
faith and fair dealing against the city and Caruso as arising from the same
transaction involving the defendant.
2
On appeal, the plaintiff also claims: ‘‘The trial court erred in finding that
the Fennell doctrine shielded [the defendant] from liability for breaching
his own promise.’’ The trial court granted the motion for directed verdict
in favor of the city and its agents, including the defendant in his capacity
as city manager, based on the Fennell doctrine. See Fennell v. Hartford,
238 Conn. 809, 814, 681 A.2d 934 (1996). However, there is no record that
the trial court applied the Fennell doctrine to grant the motion for a directed
verdict in favor of the defendant in his individual capacity. The trial court
ruled from the bench on the motion for directed verdict as it pertained to
the defendant individually: ‘‘I also believe there is insufficient evidence to
submit the case to the jury as to whether an agreement existed individually
with [the defendant]. And, therefore, I will direct judgment for the defen-
dant . . . .’’
3
The ridgeline protection zone is an overlay zone designed to protect
certain geological formations. Carabetta v. Planning Commission, Superior
Court, judicial district of New Haven, Docket No. CV-03-0285713 (December
8, 2005). The city considered the plaintiff’s property to be part of the ridge top
of Cathole Mountain. In Carabetta, the court stated: ‘‘A Wesleyan University
professor of earth and environmental science testified that the site is a part
of the Cathole Mountain complex, which itself is a part of a larger ridge
known as Metacomet Ridge. These traprock ridges play a vital role in provid-
ing recharge areas to water sources in Meriden. The removal of large quanti-
ties of traprock as proposed by the plaintiff would have an adverse
environmental effect on the premises and the general area of Meriden.’’ Id.
4
The plaintiff’s initial complaint included eight counts against the defen-
dants: (1) breach of contract, (2) breach of the duty of good faith and fair
dealing, (3) violation of equal protection rights, (4) tortious interference
with prospective economic gain, (5) civil conspiracy, (6) violation of due
process rights and fundamental fairness, (7) equitable estoppel and (8) abuse
of office. The court, Markle, J., granted the defendants’ motion to strike
the claims of tortious interference with prospective economic gain, equitable
estoppel and abuse of office. After discovery, the trial court, Sheridan, J.,
granted the defendants’ motion for summary judgment as to the claims of
violation of equal protection rights and violation of due process rights and
fundamental fairness. After this appeal was filed, this court ordered the trial
court to clarify whether it implicitly disposed of the claim of civil conspiracy
when it rendered summary judgment. In response, the trial court issued a
clarification of decision indicating that it had found that the defendants
were entitled to summary judgment on the claim of civil conspiracy, but
that it omitted this finding from its memorandum of decision. These decisions
were not appealed.
5
The defendant and the city first moved for a directed verdict when the
plaintiff rested its case-in-chief. At the time, the trial court did not make a
ruling and instead reserved judgment.
6
If anything, the circumstantial evidence presented at trial inferred that the
plaintiff was seeking to reach an agreement with the city, not the defendant in
his individual capacity. The 2007 letter from Salvatore was addressed to the
defendant at his city office and sent to his work e-mail account. The letter
referred to the defendant by his official title, city manager. In the letter,
Salvatore stated that the agreement would ‘‘inure to the benefit of the city
of Meriden and its citizens . . . .’’ Nowhere in the letter did Salvatore specify
any benefits that the defendant would receive individually. Finally, the plain-
tiff’s complaint in this matter stated that the defendant was ‘‘the city’s
authorized agent’’ and that the defendant agreed to the plaintiff’s offer on
‘‘behalf of the city . . . .’’